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such as retaining goods of the decedent in satisfaction of a debt due himself.se It is said that where one has rendered himself liable as executor de son tort but is subsequently duly appointed administrator of the estate, he can not in a suit thereafter brought be held liable as executor of his own wrong, yet he is liable for the proper administration of the estate as the lawful administrator.87 And where one has made himself liable to an action as executor of his own wrong for which he would have been held chargeable to the rightful administrator when appointed, he does not by afterward obtaining administration purge himself of the wrong which he committed before its grant so as to prevent his being sued as executor of his own wrong.88 The better statement of the rule is that where an executor de son tort is subsequently legally appointed, only those acts are validated which would have been valid had he been legally appointed at the time they were done, and that he can not be relieved for liability for acts detrimental to the estate.89

§ 1270. Actions Against Executor De Son Tort: Who May Sue..

An executor de son tort may be sued as executor, not only by a creditor or legatee of the deceased, but also by the rightful executor or administrator; and it has been

86 Bacon's Abr., tit. Exrs. & Admrs., B, 3, 3; Vaughan V. Browne, 2 Str. 1106; Andrew v. Gallison, 15 Mass. 326.

As to payment of debts of decedent by executor de son tort, see § 1264.

87 Allen v. Allen, 144 Ga. 687, 87 S. E. 891.

88 Cook v. Dodds, 6 Ontario L. Rep. 608; Norfleet v. Riddick, 14 N. C. (3 Dev. L.) 717, 22 Am. Dec. 717.

89 Casto v. Murray, 47 Ore. 57, 81 Pac. 388, 883.

As to the duties and liabilities of an executor de son tort, see § 1266.

held that he may be sued jointly with the lawful executor, or they may be sued severally." The theory of an action against an executor of his own wrong is that there was a will in which he was presumably named as executor, but that he had failed to have it probated. But this fiction seems to have been lost sight of and, under the practice as it now prevails, the creditor of the decedent brings his action against him as the executor, alleges his intermeddling with the lawful appointment, and the possession of the goods of the deceased, states his cause of action, and prays judgment. The suit is brought as though he had been lawfully appointed. He is charged in the complaint with taking the goods of the deceased and failing to apply them to the settlement of the estate and the payment of debts.91 As a general rule at common law, before one could be charged as executor de son tort, it was necessary to show that no will had been proved or administration granted upon the estate. This rule was not invariable, however, as on expressly claiming to act as executor, doing acts which only an executor could do, because chargeable as such, notwithstanding there was a

90 Roggenkamp v. Roggenkamp, 68 Fed. 605, 15 C. C. A. 600; Ward v. Bevill, 10 Ala. 197, 44 Am. Dec. 478; Dawson v. Callaway, 18 Ga. 573; Swift v. Martin, 19 Mo. App. 488; Winn v. Slaughter, 5 Heisk. (Tenn.) 191; Merrill v. Comstock, 154 Wis. 434, 143 N. W. 313. Creditor may sue.-Godolph, pt. 2, ch. 8, § 2.

Legatee may sue.-Bacon's Abr., tit. Exrs, & Admrs., B, 3, 3.

91 Ebbinger v. Wightman, 15 Colo. App. 439, 62 Pac. 963.

Even where it is not pleaded that one is executor de son tort, evidence may be introduced to show the defendant to be such.Harper v. West, 11 Fed. Cas. 6093, 1 Cranch C. C. (U. S.) 192.

It is better practice to describe the person sued as "executor," and not as "executor de son tort."Winn V. Slaughter, 5 Heisk. (Tenn.) 191.

lawfully appointed representative of the estate.92 At common law a creditor could recover from the executor de son tort only on condition that he could prove that the acts of the wrongful executor had resulted in loss to himself.98

§ 1271. Forms of Action Against Executor De Son Tort.

A creditor of the decedent may sue the executor de son tort for his debt and is entitled, in the absence of a successful showing under the plea of plene administravit by the defendant, to a judgment for the amount due.94 Debt is a proper form of action by a creditor of the decedent against an executor de son tort to recover his debt,95 and in such a suit the right of recovery is in effect based upon contract so that a writ of attachment may issue as founded upon contract and not upon the tortious intermeddling with the effects of the decedent.96

Where one has so intermeddled with the goods of a decedent as to make himself chargeable as an executor de son tort, and has sold the goods coming into his possession, he is liable to the executor or administrator thereafter legally appointed in an action of trover for the conversion, or the tort may be waived and an action be had in assumpsit for money had and received.98 An action

97

92 Willingham v. Rushing, 105 Ga. 72, 31 S. E. 130.

93 Merrill v. Comstock, 154 Wis. 434, 143 N. W. 313.

94 See § 1264.

As to manner of pleading defenses, see § 1274.

As to who may sue, see § 1270.
As to defenses of executor de

son tort, see §§ 1273-1275.

95 Bellows v. Goodall, 32 N. H. 97.

96 Martin v. Hand, 11 R. I. 306. 97 Upchurch v. Norsworthy, 15 Ala. 705; Tobey v. Miller, 54 Me. 480; Rockwell v. Saunders, 19 Barb. (N. Y.) 473.

98 Upchurch v. Nors worthy, 15 Ala. 705.

for trespass will also lie for an unlawful taking of the goods of the decedent.99

It has been held that a creditor may come into a court of chancery to obtain satisfaction of his debt due from the decedent, out of property which the debtor had in his lifetime conveyed to defraud his creditors;1 yet on the ' other hand it has been held that a creditor of an estate can not come into equity to subject to the satisfaction of his debt, property in the hands of a third person who had become chargeable as an executor de son tort, the reason being that in such a case there is a plain, adequate, and unembarrassed remedy at law.2

§ 1272. The Same Subject: Time and Venue.

An executor de son tort may be sued immediately after having intermeddled with the goods of the deceased, and a statute protecting executors and administrators from suits until a certain time after the death of the testator or intestate does not apply to him. An executor de son tort can not protect himself under the limitations prescribed by the statute where there has been no legal and rightful administration of the estate; and suit may be brought against him, if a cause of action exist against the debtor at his decease, at any time before the action is barred by the statute after a lawful grant of administration.1

V.

99 Rockwell Barb. (N. Y.) 473.

Saunders, 19

1 Watts v. Gayle, 20 Ala. 817. As to a transfer of goods by decedent to defraud creditors, see § 1157.

2 Pleasants & Co. v. Glasscock, Sm. & M. Ch. (Miss.) 17.

III Com. on Wills-9

As to goods of a decedent received by one through collusion, see § 1259.

3 Brown v. Leavitt, 26 N. H. 493; Chambers v. Davison, 1 Hill's L. (S. C.) 50.

4 Brown v. Leavitt, 26 N. H. 493.

Where a person takes possession of the property of a decedent in one state under circumstances that render him liable as an executor de son tort, and removes or sells it, he may be sued wherever he may be found, even in another jurisdiction."

§ 1273. Defenses Which Executor De Son Tort May Interpose.

An executor de son tort is protected in all acts, not for his own benefit, which the rightful representative may do. As a general rule it may be said that all his lawful acts are good and afford him full protection. Where, therefore, one is called to account in equity, he may show that there are no outstanding debts, and that he has applied the assets for the use and benefit of the distributees as they must have been applied in due course of administration. The general rule may be thus summarized, that an executor de son tort of a solvent estate may discharge himself, even against the demand of the rightful executor, by proving debts paid to the amount of the goods received which had belonged to the deceased." The rule has been stated in another jurisdiction thus, that liability is escaped by a proper care of the property and its faithful application in discharge of liabilities. It is

5 Densler v. Edwards, 5 Ala. 31; Hopkins v. Towns, 4 B. Mon. (Ky.) 124, 39 Am. Dec. 497; Baldridge v. Evans, (Iowa) 164 N. W. 333.

Where one has made himself liable as an executor de son tort in two different states, there need be no evidence introduced to show his liability in the state outside of where the suit is brought.-Foster v. Nowlin, 4 Mo. 18.

6 Brown v. Walter, 58 Ala. 310.

8

As to the duties and liabilities of an executor de son tort, see § 1266. 7 Roggenkamp v. Roggenkamp, 68 Fed. 605, 15 C. C. A. 600; McConnell v. McConnell, 94 Ill. 295; Reagan v. Long's Admx., 21 Ind. 264; Tobey v. Miller, 54 Me. 480; Winn V. Slaughter, 5 Heisk. (Tenn.) 191. See, ante, § 1264, as to payment of debts.

8 Hewes v. Baxter, 48 La. Ann. 130%, 20 So. 701.

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